Seeking Dismissal of Drug Charges, Medical Marijuana Patients Say Congress Is on Their SideWill a new spending restriction end the Kettle Falls Five case?

January 19, 2015 | Kris Hermes

Last month, after Congress approved an omnibus spending bill that bars the Justice Department from spending money to "prevent" states from "implementing" medical marijuana laws, I suggested that the fate of the Kettle Falls Five would be an early indicator of the rider's impact. Last week a lawyer for those patients, who were arrested by the Drug Enforcement Administration for growing marijuana in northeastern Washington and are scheduled to be tried next month, cited the rider in asking a federal judge to dismiss the charges against them, which could send them to prison for 10 years or more.

"Prosecuting persons who may be operating in compliance with state medical marijuana laws prevents states from implementing their own laws in at least three ways," writes federal public defender Robert Fischer on behalf of the lead plaintiff, Larry Harvey. Fischer argues that such prosecutions create uncertainty about whether patients will be able to obtain their medicine, "take away Washington's authority to determine for itself whether someone is in compliance with its laws or not," and deny the medical value that Congress acknowledged by approving the spending restriction.

To shore up his argument that the rider prohibits continued prosecution of Harvey and the four other defendants, Fischer cites comments during the debate before the House approved it. Rep. Sam Farr (D-Calif.), who cosponsored the rider along with Rep. Dana Rohrabacher (R-Calif.), explained its aim this way:

This [amendment] is essentially saying, look, if you are following state law, you are a legal resident doing your business under state law, the feds can't come in and bust you and bust the doctors and bust the patient. This doesn't affect one law, just lists the states that have already legalized it only for medical purposes, and says, "Federal government, you can't bust people."

According to Rep. Dina Titus (D-Nev.), the Rohrabacher/Farr amendment "simply ensures that patients do not have to live in fear when following the laws of their states and the recommendations of their doctors. Physicians in those states will not be prosecuted for prescribing the substance [marijuana], and local businesses will not be shut down for dispensing the same." Rep. Paul Broun (R-Ga.), a family physician, said "there are very valid medical reasons to utilize extracts or products from marijuana in medical procedures," adding, "This is a states' rights, 10th Amendment issue. We need to reserve the states' powers under the Constitution."

Rep. Earl Blumenauer (D-Ore.) agreed. "This amendment is important to get the federal government out of the way," he said. "Let this process work going forward where we can have respect for states' rights and something that makes a huge difference to hundreds of thousands of people around the country now and more in the future."

Even opponents of the amendment seemed to agree that it would bar prosecution of people complying with state law. Rep. Andy Harris (R-Md.) wondered, "How is the DEA going to enforce anything when, under this amendment, they are prohibited from going into that person's house growing as many plants as they want, because that is legal under the medical marijuana part of the law?" Rep. John Fleming (R-La.) complained that the amendment would "make it difficult, if not impossible, for the DEA and the Department of Justice to enforce the law."

These comments are important because it is not completely clear what it means to "prevent" states from "implementing" their medical marijuana laws. Those laws carve out exceptions to state penalties for marijuana-related activitives, and punishing those activities under federal law does not eliminate those exceptions, although it does undermine the goal of facilitating access to marijuana by patients who can benefit from it.

Another complication in the Kettle Falls Five case is that there is some dispute about whether the defendants were complying with state law. Washington's medical marijuana law gives a patient with a doctor's recommendation an affirmative defense against cultivation charges for growing up to 15 plants. An August 9, 2012, raid on Harvey's property by the Stevens County Sheriff's Department found 74 plants, which is less than the total of 75 that the five patients were allotted. But the sheriff's deputies confiscated 29 of those plants, citing a legal provision that eliminates penalties for "collective gardens" with no more than 45 plants. When DEA agents raided the property a week later, they took the rest of the plants, since any amount of marijuana is contraband under federal law, regardless of the intended use.

Even before the Rohrabacher/Farr amendment, this case seemed to run afoul of Justice Department policy, which frowns on prosecuting patients who comply with state law. To the extent that there is any ambiguity about whether Harvey et al. were complying with state law, both the amendment and DOJ policy suggest that it should be resolved by officials in Washington, who decided the garden was OK once the "extra" plants had been eliminated. "From the facts in this case," Fischer writes, "the Harveys and co-defendants were in compliance with Washington state law, or earnestly attempting compliance, thus implementing the law of the state."

If that argument prevails, the Rohrabacher/Farr amendment should provide broad protection for patients and their providers (although dispensaries in states that do not explicitly allow them may still be in legal jeopardy). But if the judge decides that implementing a medical marijuana law means nothing more than making exceptions to state criminal penalties, Congress may have to revisit this issue to clarify its intent.